This opinion will be unpublished and

may not cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




Marlene Marie Naslund, petitioner,



Commissioner of Public Safety,


Filed January 27, 1998


Toussaint, Chief Judge

Anoka County District Court

File No. C8-97-5368

Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)

Hubert H. Humphrey III, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 200 Capitol Office Bldg., 525 Park Street, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.[*]


TOUSSAINT, Chief Judge

Appellant Marlene Marie Naslund challenges the district court's dismissal of her petition to reinstate her driver's license. Because the district court did not err when it determined that there was sufficient cause to believe that Naslund consumed alcohol in violation of the restriction on her driving privileges that she abstain from alcohol as a condition of licensure in Minnesota, we affirm.


When reviewing decisions regarding driver's license privileges, there is a presumption of regularity and correctness. Antl v. Dep't. of Pub. Safety, 353 N.W.2d 240, 242 (Minn. App. 1984). Generally, this court will not reverse a license determination unless it finds that it was fraudulent, arbitrary, unreasonable, or outside the agency's jurisdiction. Id. This court may not substitute its own judgment for that of the commissioner's. Schultz v. Commissioner of Pub. Safety, 365 N.W.2d 304, 307 (Minn. App 1985).

Although an appellant must show that the commissioner acted arbitrarily or unreasonably, the original burden is on the commissioner to act with "good cause." Plaster v. Commissioner of Pub. Safety, 490 N.W.2d 904, 906 (Minn. App. 1992). The commissioner must present evidence to show there was good cause to believe that the appellant violated a total abstinence clause. Id. To establish good cause, the commissioner may rely upon "written information from an identified person" and "court documents and police records." Minn. R. 7503.0100, subpt. 11 (1995).

As of December 30, 1996, Naslund's driving privileges contained a restriction that any use of alcohol would invalidate her driver's license. On this date, a domestic assault occurred at Naslund's residence. The person identified in the police records was "Marlene Marie Westerberg."

Police officers Brad Paplham and Thomas Lueck arrived at Naslund's home during the fight. Officer Lueck reported that as he approached Naslund he: (1) could smell an odor of alcohol on her breath; (2) noticed Naslund's slurred speech; and (3) observed an unsteady gait in her walk. Neither officer obtained a preliminary breath test from Naslund or asked her to perform field sobriety tests. Officer Paplham entered the residence and encountered Naslund, whom he characterized as irrational, boisterous, confrontational, and loud.

On March 26, 1997, the commissioner received an anonymous tip that the person claiming to be "Marlene Marie Westerberg" was actually "Marlene Marie Naslund" and that she had consumed alcohol on the evening that the domestic assault occurred. The officers who responded to the domestic assault wrote supplemental police reports on May 27, 1997, stating that on December 30, 1996, Naslund did in fact consume alcohol.

At the implied consent hearing, Renee Anderson, Naslund's Alcoholics Anonymous sponsor; Gary Albrecht, Naslund's partner; Buddy Westerberg, Naslund's brother; and Yvonne English, John Westerberg's partner; testified that they were at Naslund's home on December 30, 1996 and did not see Naslund consume alcohol. The district court evaluated the credibility of the witnesses and concluded that Naslund had consumed alcohol in violation of the licensure restriction.

Naslund claims that the district court's finding that she consumed alcohol is clearly erroneous because the court did not believe the witnesses she produced and her credibility was allegedly not impeached on cross-examination. Naslund further argues that the officers had no objective basis to believe that she consumed alcohol. She emphasizes that the officers did not conduct a field sobriety test and they did not ask her, or any other person, whether she had been drinking. Finally, Naslund states that because the supplemental police reports were generated five months after the original incident, there is no factual proof of the officers' conclusory allegation that she consumed alcohol.

A district court's findings of fact "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. It is not error for the district court to disregard significant portions of testimony after making credibility determinations. Engebretson v. Commissioner of Pub. Safety, 395 N.W.2d 98, 100 (Minn. App. 1986) (stating that the district court is in a unique position to make "primary observations" of witnesses' credibility). Even if uncontradicted testimony is offered into evidence, the district court is not required to believe it. State v. White, 411 N.W.2d 196, 202-03 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987).

Because the district court's finding of fact was based on evaluating the relative credibility of the witnesses and is supported by the record, we affirm. The testimony of each of the witnesses was contradicted by the officers' observations that Naslund consumed alcohol, and the district court was free to make credibility determinations and believe the officer's testimony and disbelieve Naslund's witnesses. Under the circumstances it was well within the district court's discretion to not believe Naslund or her witnesses. The district court's finding of fact that Naslund consumed alcohol is supported by the record.


[*]Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.